dissenting:
In my opinion the circuit court of Cook County was in error in reversing the Commission. Cooper and LaPorte appealed to the circuit court the Commission’s order which modified Cooper’s certificate in two respects, as to commodities and territory. The original certificate issued by the Commission and the authority as modified after the instant hearings follow:
Original
“General commodities and raw milk within a fifty (50) mile radius of 547 North Milwaukee Avenue, Libertyville, Illinois, and to transport such property to or from any point outside of such authorized area of operation for a shipper or shippers within such area.”
As modified
“General commodities (except commodities in bulk) within Cook, Du Page, Kane, Lake and McHenry Counties, Illinois.”
The applicable statute (Ill. Rev. Stat. 1973, ch. 111 2/3, par. 72) provides in pertinent part:
“The findings and conclusions of the Commission on questions of fact shall be held prima facie to be true and as found by the Commission; and a * * * order or decision of the Commission shall not be set aside unless it clearly appears that the finding of the Commission was against the manifest weight of the evidence presented to or before the Commission for and against such 8 * 8 order or decision * *
Thus, before the circuit court, Cooper and LaPorte had the burden of establishing that the order of the Commission was against the manifest weight of the evidence. There is nothing in the record presented to this court which in any way suggests how the circuit court arrived at its decision to modify the order of the Commission. Briefs were filed in the circuit court by the respective parties and are included in the record on appeal. As framed before the circuit court by Cooper and LaPorte, the issue before that court was whether Cooper had “abandoned, suspended or discontinued operations 9 * 9 so as to warrant cancellation of a portion of the authority ° * On the other hand, the Commission styled the issue properly as whether the order was clearly against the manifest weight of the evidence. The order entered by the trial court, which is appealed here, in pertinent part reads:
“IT IS HEREBY FOUND:
1. That to the extent the transfer was approved the Court finds the decision of the administrative agency to be consistent with the law and fact;
2. That to the extent the transfer was denied, the Court finds that the administrative agency erred as a matter of law in finding that operations had been abandoned, suspended or discontinued and that decision in Be-Mac Transport Co. v. Commission, 30 [sic 38] Ill. 2d 154 (1967) was controlling:
THEREFORE, it is ordered:
1. That the administrative decision is reversed and that the case be remanded to the Illinois Commerce Commission for further consideration and orders consistent with the findings herein.”
As I understand the order appealed from,1 the circuit court does not even mention the statutory mandate regarding the manifest weight of the evidence. The trial court accepted and affirmed in part the findings of the Commission, but rejected other findings on the basis the Commission “erred as a matter of law.”
The case of Be-Mac Transport Co. v. Commerce Com. (1967), 38 Ill. 2d 154, 230 N.E.2d 216, was relied on by the trial court and is cited in the majority opinion. Be-Mac involved a joint application to transfer a certificate of public convenience and necessity. The Commission approved the transfer of Routes 1 through 14 but held Route 15 had been abandoned and denied transfer as to it. The Winnebago County Circuit Court reversed the Commission as to Routes 6 and 9, holding these routes had been abandoned by the transferor. The only question before the supreme court was the trial court’s reversal of the Commission’s findings as to Routes 6 and 9. After reviewing the evidence before the Commission, the supreme court said (at 158): “Based on this testimony the Commission made the statutorily required finding that the routes in question had not been abandoned, and it would seem clear that this conclusion was not against the manifest weight of the evidence." It is true the supreme court pointed out that the interlining was a large proportion of the shipments on Routes 6 and 9. The supreme court characterized “interlining” as a common practice in the trucking industry to transfer shipments to connecting carriers for delivery even though the transferor itself held authority to serve the delivery point. The fact that the interlining had occurred did not invalidate the Commission’s finding. In reversing the circuit court, the supreme court held that the circuit court could properly reverse only (at 159) “if it clearly appears that the Commission’s findings are against the manifest weight of the evidence 0 * See also Chicago, Burlington & Quincy R.R. Co. v. Illinois Commerce Com. (1965), 33 Ill. 2d 274, 277, 211 N.E.2d 279, cert, denied (1966), 383 U.S. 912, 15 L. Ed. 2d 667, 86 S. Ct. 890.
So far as the instant case is concerned, as I read the findings of the Commission, the interlining business was not the basis for its modification order. Rather, the Commission found that Cooper’s own evidence supported its finding that Cooper had been engaged in the transportation of general commodities within Cook, Du Page, Kane, Lake, and McHenry Counties. In fact, as I review the record, it is obvious that Cooper’s own testimony amply supports the Commission’s finding. Therefore, it was not against the manifest weight of the evidence.
A reading of the majority opinion points out the conflicts in the evidence. In my opinion the majority disregards the “manifest weight of the evidence” mandate. I believe there is evidence to support the finding of the Commission that as to certain areas “* * " there has been an abandonment, suspension or discontinuance of service prior to the proposed transfer 6 ” Thus I cannot substitute my judgment for that of the Commission (Sunset Trails Water Co. v. Illinois Commerce Com. (3d Dist. 1972), 7 Ill. App. 3d 449, 456, 287 N.E.2d 736), nor can I say the Commission’s finding was against the manifest weight of the evidence. I would reverse the circuit court of Cook County.
Although normally an order of the circuit court remanding the case to the administrative agency for further proceedings is interlocutory and not appealable, a remand under this type of order does not make it nonappealable. Colaw v. University Civil Service Merit Board (4th Dist. 1975), 37 Ill. App. 3d 857, 861, 341 N.E.2d 719.